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Sender:
Eoin O' Dell
Date:
Thu, 8 Oct 1998 12:25:52 +0100
Re:
007, restitution, and the vindication of property rights revisited

 

Cue: searchlight, background music (dum, dum-dum, DUM, dum, ...), silhouette (in profile with gun, then turning face on with gun outstretched) and cut to the chase:

First, reserving my position on the appropriateness or existence of a common law vindicatio (like Christianity and Western Civilization, it's much too early to tell, but I think that it could be a good idea), I'd like to make a comment on Charles's note to the list on Gotha v Sotheby's.

Second, it is settled, I think, that if I can follow or trace my property into your hands, and you have converted it, it is settled law that I can sue you for the proceeds. But if I had followed to traced it into your hands, and it is still there, it is an open question whether I can simply sue you for its return or for an award of money reflecting the value of the property in your hands. The former is the tort of conversion; the latter, if it exists, is the snark-like vindicatio. Since a proprietary interest of some sort is necessary for both claims, then, in both cases, the bank starts out by praying 'Please say, O Court, that the painting is ours'. After that, in the tort of conversion, the bank would pray 'Please say, O Court, that since it was sold by the defendants, we are therefore entitled to the proceeds in their hands'; whereas, in the 'vindicatio', the bank would pray 'Please say, O Court, that we can therefore have it [or its value in money] back'. Hence, simply because the bank used the form of prayer 'Please say, O Court, that the painting is ours', it does not follow that they pleaded a 'vindicatio', because it is also appropriate to found a claim in conversion. Charles tells us that the Times tells him isn't this hearsay ?) that Gotha sought, inter alia, damages for conversion. Hence, the structure of the action (as reported in the Times and described by Charles) seems entirely appropriate, and it follows that it is unlikely that Gotha v Sotheby's can be put with Macmillan v Bishopsgate as a 'vindicatio' pattern case.

Third, best regards to all of the list members for whom this time of the year sees the start of the academic and legal year, and therefore the beginning of madness and mayhem ...

 

Eoin

EOIN O'DELL
Barrister, Lecturer in Law

Trinity College
Dublin 2
Ireland

ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449

Live Long and Prosper !!
(All opinions are personal; no legal responsibility whatsoever is accepted.)


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